Judicature For Rajasthan Bench High Court · 2011

HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Neeraj K. Tiwari for the petitioners. Shri Paresh Choudhary, Public Prosecutor for State. ****** This petition u/s.482 of Cr.P.C. has been filed by the accused-petitioners against the order dated 29.8.2005 passed by the learned Judicial Magistrate, (Junior Division), Nasirabad for taking cognizance against them u/s.302/201 and 120B of IPC. Shri Neeraj K. Tiwari, learned counsel for the petitioner has argued that the police had filed final report and, therefore, the Magistrate was not justified in taking cognizance. The police filed the final report because there was no direct involvement of the accused-petitioners. Learned counsel referred to number of statements of witnesses and argued that all the witnesses which have been relied on and referred to by the learned Magistrate are close relatives of the deceased and are exonerating. It was argued that alleged incident, in which the deceased is said to have been caught with the wife of one of the brothers of the petitioners, was of 16th July, 1998 whereas dead body of the deceased was recovered from a well on 20th August, 1998. The time gap is so much, which cannot connect the accused with the crime. It was argued that witnesses are wrongly stating that the accused went to their house to threaten them that they would kill the deceased Ranjeet. All the statements of witnesses 2 are false and concocted. Learned counsel referred to statement of one of the witnesses i.e. Rajendra to argue that this witness stated that deceased was alive till 16th August, 1998 and, therefore, statement of the relative statements that the deceased was not seen after 16th July, 1998 cannot be believed. Learned counsel therefore argued that even on circumstantial evidence, there is hardly any justification for taking cognizance against the accused-petitioners. Shri Paresh Choudhary, learned Public Prosecutor has argued that the learned Magistrate was justified in taking cognizance because the number of witnesses have stated that deceased was beaten by the accused when he was found to have entered in their house on the doubt of having relations with a lady of their family. It was argued that even then the evidence has also come that the accused-petitioners came to the house of the deceased on the following day. They threatened all the family members and also said that they would kill Ranjeet and from then onwards, Ranjeet was never seen and did not return to the family, while only his dead body was recovered. The requirement of the standard of proof beyond reasonable doubt may not be necessary to adhere to at the stage of taking cognizance because the guilt of the accused in any case shall have to be proved although subsequently during trial. On hearing learned counsel for the petitioners and learned Public Prosecutor, I am not agree with the submission that at the stage of taking cognizance the learned trial court is not required to shift or marshal the evidence and that it has to see 3 whether if allegations are accepted in entirety, they would make out a case against the accused worth proceedings further for trial. The offences for which cognizance has been taken against the accused-petitioners are u/s.302/201 and 120B of IPC. Even if the police had proposed final report, the learned Magistrate in his will and within his right shall take cognizance in terms of Section 119 of Cr.P.C. The Court has been taken to various statements in order that the case of the accused may not be prejudiced. It is not considered appropriate to refer to those statements in details. However, suffice it to say that the order passed by the Learned Magistrate for taking cognizance does not suffer from any legal infirmity. The petition is therefore dismissed. The record may be sent back to the trial court. Petitioners if they so wish, may surrender before the trial court, which Court may consider their application for regular bail. (MOHAMMAD RAFIQ), J. RS/-